In this Jan. 11, 2021 file photo, New York Gov. Andrew Cuomo delivers his State of the State address virtually from The War Room at the state Capitol, in Albany, N.Y. New York may have undercounted COVID-19 deaths among nursing home residents by thousands, the state attorney general charged in a report Thursday, Jan. 28, 2021 that dealt a blow to Gov. Andrew Cuomo's oft-repeated claims that his state is doing better than others in protecting its most vulnerable. (AP Photo/Hans Pennink, Pool, File)

From Office of NYS Attorney General

NEW YORK – Attorney General Letitia James released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic. Since March, Attorney General James has been investigating nursing homes throughout New York state based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees.

Among those findings were that a larger number of nursing home residents died from COVID-19 than the New York State Department of Health’s (DOH) published nursing home data reflected and may have been undercounted by as much as 50 percent. The investigations also revealed that nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm, and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates. Based on these findings and subsequent investigation, Attorney General James is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.

“As the pandemic and our investigations continue, it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate,” said Attorney General James. “While we cannot bring back the individuals we lost to this crisis, this report seeks to offer transparency that the public deserves and to spur increased action to protect our most vulnerable residents. Nursing homes residents and workers deserve to live and work in safe environments, and I will continue to work hard to safeguard this basic right during this precarious time.”

Background

The Office of the Attorney General (OAG) is the only law enforcement agency in the state specifically mandated to investigate and prosecute abuse and neglect of residents in nursing homes. In early March, OAG received and began to investigate allegations and indications of COVID-19-related neglect of residents in nursing homes. At the direction of Governor Andrew Cuomo, on April 23, OAG set up a hotline to receive complaints relating to communications by nursing homes with family members prohibited from in-person visits to nursing homes and formally initiated a large-scale investigation of nursing homes’ responses to the pandemic. OAG received more than 770 complaints on the hotline through August 3, and an additional 179 complaints through November 16. OAG also continued to receive allegations of COVID-19-related neglect of residents through pre-existing reporting systems.

Overview of Findings

The report includes preliminary findings based on data obtained in investigations conducted to date, recommendations that are based on those findings, related findings in pre-pandemic investigations of nursing homes, and other available data and analysis. Based on this information and subsequent investigation, OAG is currently conducting investigations into more than 20 nursing homes across the state. OAG found that:

-A larger number of nursing home residents died from COVID-19 than DOH data reflected;

-Lack of compliance with infection control protocols put residents at increased risk of harm;

-Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates;

-Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm;

-Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm;

-The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE;

-Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and

-Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Undercounting of COVID-19 Deaths in Nursing Homes

Preliminary data obtained by OAG suggests that many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH’s published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the OAG found that nursing home resident deaths appear to be undercounted by DOH by approximately 50 percent.

OAG asked 62 nursing homes (10 percent of the total facilities in New York) for information about on-site and in-hospital deaths from COVID-19. Using the data from these 62 nursing homes, OAG compared: (1) in-facility deaths reported to OAG compared to in-facility deaths publicized by DOH, and (2) total deaths reported to OAG compared to total deaths publicized by DOH.

In one example, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of August 3 to DOH. However, the facility reported to OAG a total of 27 COVID-19 deaths at the facility and 13 hospital deaths — a discrepancy of 29 deaths.

Lack of Compliance with Infection Control Policies

OAG received numerous complaints that some nursing homes failed to implement proper infection controls to prevent or mitigate the transmission of COVID-19 to vulnerable residents. Among those reports were allegations that several nursing homes around the state failed to plan and take proper infection control measures, including:

-Failing to properly isolate residents who tested positive for COVID-19;

-Failing to adequately screen or test employees for COVID-19;

-Demanding that sick employees continue to work and care for residents or face retaliation or termination;

-Failing to train employees in infection control protocols; and

-Failing to obtain, fit, and train caregivers with PPE.

For instance, OAG received a complaint that at a for-profit nursing home located north of New York City, residents who tested positive for COVID-19 were intermingled with the general population for several months because the facility had not yet created a “COVID-19 only” unit. At another for-profit facility on Long Island, COVID-19 patients who were transferred to the facility after a hospital stay and were supposed to be placed in a separate COVID-19 unit in the nursing home were, in fact, scattered throughout the facility despite available beds in the COVID-19 unit. This situation was allegedly resolved only after someone at the facility learned of an impending DOH infection control visit scheduled for the next day, before which those residents were hurriedly transferred to the appropriate designated unit.

OAG received reports that nursing homes did not properly screen staff members before allowing them to enter the facility to work with residents. Among those reports, OAG received an allegation that a for-profit nursing home north of New York City failed to consistently conduct COVID-19 employee screening. It was reported that some staff avoided having their temperatures taken and answering a COVID-19 questionnaire at times when the screening station at the facility’s front entrance had no employees present to take that information or when staff entered the facility through a back entrance, avoiding the screening station altogether.

At yet another facility in Western New York, a nurse reported to OAG that immediately prior to the facility’s first DOH inspection in late April, a nurse supervisor had set up bins in front of the units with gowns and N95 masks to make it appear that the facility had an adequate supply of appropriate PPE for staff. The nurse alleged that the nurse supervisor came in to work unusually early the day of the first inspection and brought out all new PPE and collected all of the used gowns. Although the initial DOH survey conducted that day did not result in negative findings, DOH returned to the facility for follow-up inspections, issued the facility several citations, and ultimately placed the facility in “Immediate Jeopardy.”

Nursing Home with Low Staffing Ratings Had Higher Fatality Rates

There are 619 nursing homes in New York, and 401 of these facilities are for-profit, privately owned, and operated entities. Of the state’s 401 for-profit facilities, more than two-thirds — 280 nursing homes — have the lowest possible CMS Staffing ratings. The Staffing rating reflects the number of staffing hours in the nursing department of a facility relative to the number of residents. As of November 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities. Some of these facilities have also been known to transfer facility funds to owners and investors, rather than use them to invest in additional staffing to care for residents.

Pre-existing, insufficient staffing levels put residents and staff at increased risk of harm during the pandemic. As nursing home resident and staff COVID-19 infections rose during the initial wave of the pandemic, staffing absences increased at many nursing homes. As a result, already-low staffing levels decreased even further, to especially dangerous levels in some homes, even as the need for care increased due to the need to comply with COVID-19 infection control protocols and the loss of assistance from family visitors. OAG’s preliminary investigations reflect many examples where for-profit nursing homes’ pre-pandemic low staffing model simply snapped under the stress of the pandemic.

OAG received a complaint from a resident’s son about a for-profit nursing home in New York City alleging that his mother was not receiving proper care because of critically low staffing levels at the facility. His mother was never tested for COVID-19, but later died while exhibiting COVID-19 symptoms. Between late March and early April, the facility was so understaffed due to staff quarantining, working from home, and pre-existing low staffing, that the onsite management of the entire facility was left in the hands of just two nurse supervisors. During the week of April 5, 33 residents died at that facility, 15 percent of all its residents.

In addition, preliminary investigations indicate that when there were insufficient staff to care for residents, some nursing homes pressured, knowingly permitted, or incentivized existing employees who were ill or met quarantine criteria to report to work and even work multiple consecutive shifts, in violation of infection control protocols. These policies put both residents and staff at great risk.

Immunity Provisions

Despite these disturbing and potentially unlawful findings, due to recent changes in state law, it remains unclear to what extent facilities or individuals can be held accountable if found to have failed to appropriately protect the residents in their care.

On March 23, Governor Cuomo created limited immunity provisions for health care providers relating to COVID-19. The Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to health care professionals from potential liability arising from certain decisions, actions and/or omissions related to the care of individuals during the COVID-19 pandemic. While it is reasonable to provide some protections for health care workers making impossible health care decisions in good faith during an unprecedented public health crisis, it would not be appropriate or just for nursing homes owners to interpret this action as providing blanket immunity for causing harm to residents.

In order to ensure no one can evade potential accountability, Attorney General James recommends eliminating these newly enacted immunity provisions.

Attorney General James encourages anyone with information or concerns about nursing home conditions to file confidential complaints online or by calling 833-249-8499.

This report is the collective product of investigative work undertaken since March 2020 by the Medicaid Fraud Control Unit’s (MFCU) 275 attorneys, forensic auditors, police investigators, medical analysts, data scientists, electronic investigation team, legal assistants, and support staff in eight offices across New York. MFCU is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney. MFCU is a part of the Division for Criminal Justice, which is led by Chief Deputy Attorney General for Criminal Justice José Maldonado and overseen by First Deputy Attorney General Jennifer Levy.

MFCU receives 75 percent of its funding from the U.S. Department of Health and Human Services under a grant award totaling $60,071,905 for Federal fiscal year (FY) 2019-20, of which $45,053,932 is federally funded. The remaining 25 percent of the approved grant, totaling $15,017,973 for FY 2019-20, is funded by New York state. Through MFCU’s recoveries by means of law enforcement actions and civil enforcement actions, it regularly returns more to the state than it receives in state funding.